IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-10553

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ELBERT SILAS GREEN,

Plaintiff-Appellant,

VERSUS

HENDRICK MEDICAL CENTER; UNIT HEALTH ADMINISTRATOR;

NFN COLLIER, D.D.S.; NFN MRS. BROWN;

R.O. LAMPERT, SENIOR WARDEN; JAMES DUKE, ASSISTANT WARDEN;

ROCHELLE MCKINNEY, R.N. M.A.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(1:98-CV-131)

_________________________

March 7, 2001

Before REAVLEY, SMITH, and DeMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Elbert Green, an inmate who since has been

released from prison, sued, pro se and in

forma pauperis (“IFP”), Hendrick Medical

Center, which isthe medical contractor for inmates of the John Middleton Transfer Facility,

and various administrators, alleging violations

of his Eighth Amendment and due process

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

(continued...)

*

(...continued)

47.5.4.
2

rights. The district court dismissed these

claims as frivolous. We affirm in part, vacate

in part, and remand for further proceedings.

I.

Green alleged violations of his civil rights

fromalleged deliberate indifference to his dental needs. During meals in the facility, officers

forced inmates to eat quickly. Because Green

had loose dentures, eating so quickly caused

painful lacerations, swelling, and bleeding in

his gums. He alleges that this condition

caused him to forego one meal each day.

When Green entered the John Middleton

Transfer Facility in October 1996, Dr. Collier,

the dentist, advised him to replace or reline his

dentures. Green submitted a grievance

seeking treatment for the condition, butCollier

and the warden advised Green that he had to

be in the Texas Department ofCriminalJustice

(“TDCJ”) for twelve months to be eligible to

get his dentures relined. The warden

suggested that Green obtain a blended food

passif he was having trouble eating, but Green

appears to have refused, calling the pass “unnecessary punishment” and “tactical delay.”

He submitted grievances to no avail.

Green sought declaratory relief and

monetary damages, contending that hislack of

dental treatment violates the Eighth

Amendment. The district court referred the

case to a magistrate judge, who furnished

Green with a questionnaire in lieu of a hearing.

In his responses to the questionnaire, Green

noted that he controlled his loose dentures

with adhesive and had not seen a dentist since

the early 1970’s. He further explained that the

Marshall Formby State Jail, his next facility,

replaced his dentures when twelve months had

elapsed. Green also presented a copy of the

TDCJ’s dentalservices policy, which set forth

three levels of urgency for dental care.1

The case was transferred to another

magistrate judge, who dismissed it as

frivolous. Green objected, stating that he had

not consented to resolution by a magistrate

judge. The district court agreed and issued its

own dismissal of the claim as frivolous. The

court found that Green was “seen by the

medical department eleven times” between his

entry into TDCJ and when he received new

dentures. It concluded that the defendants had

not acted with deliberate indifference and that

anyharmGreen had experienced resulted from

negligence only. Green appeals, claiming the

court erred in dismissing his claimasfrivolous,

because it (1) failed to construe his pleadings

liberally and (2) relied on medical records developed after the fact of the complaint and not

provided to him, in violation of the Due

Process Clause.

II.

A district court must dismiss an IFP suit “if

[it] determines that the action is frivolous or

malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A

claim is frivolous if it lacks any arguable basis

in law or fact. Harris v. Hegmann, 198 F.3d

153, 156 (5th Cir. 1999). “A complaint lacks

an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if

the complaint alleges violation of a legal

interest which . . . does not exist.” Harper v.

1

“Priority I needs are emergency or urgent

problems including traumatic injuries, severe pain,

infection, and swelling.” Priority II needs include

“[f]ull dentures or false teeth . . . for offenders with

few teeth or no teeth at all.” Priority III care is

available after an inmate has served at least six

months in theTDCJsystem. Priority III care, such

as cleanings, fillings, and partial dentures, are

available after twelve months.
3

Showers, 174 F.3d 716, 718 (5th Cir. 1999).

“A complaint is factually frivolous when the

facts alleged are fantastic or delusional

scenarios or the legal theory upon which a

complaint relies is indisputably meritless.”

Harris, 198 F.3d at 156 (internal quotations

omitted). We review a dismissal of an IFP suit

as frivolous for abuse of discretion. Berry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999). 

A.

Green contends the court did not construe

his pleadingsliberally. “[C]ourts must liberally

construe pro se pleadings.” United States v.

Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Construing Green’s pleadings liberally, he alleges

that the John Middleton facility treated his

condition as a Priority III when he had a

Priority I emergency. Green believes that his

“severe pain” and “swelling” bring him within

the ambit of PriorityI, while Priority IIIshould

be reserved for “cosmetic” treatments. 

The district court’s opinion essentially addresses this issue. In discussing the standard

applicable to Green’s Eighth Amendment

claim, the court notes: 

Not every claim of inadequate or

improper medical treatment is a

violation of the Constitution. Estelle v.

Gamble, 429 U.S. 97, 105-07 [(1976)].

“In order to state a cognizable claim, a

prisoner must allege acts or omissions

sufficiently harmful to evidence

deliberate indifference to serious medical

needs.” Id. at 106.

The Supreme Court has defined deliberate indifference as “subjective recklessness” and:

[A] prison official cannot be

found liable under the Eighth

Amendment . . . unless the official knows of and disregards

an excessive risk to inmate

health or safety; the official

must both be aware of facts

fromwhich the inference could

be drawn that a substantialrisk

of serious harm exists, and he

must also draw the inference.

Farmer v. Brennan, 114 S. Ct.

1970, 1980 (1994).

“It is firmly established that

negligent or mistaken medical treatment

or judgment does not implicate the

eighth amendment and does not provide

the basis for a civil rights action.”

Graves v. Hampton, 1 F.3d 315, 319

(5th Cir. 1993).

Even though the district court did not

directly address whether the prison officials

misprioritized Green’s condition, the decision

to classify a medical problem as a Priority III

rather than a Priority I is part of the doctor’s

diagnosis and recommendation for treatment.

The above reasoning, then, applies the same

to the issue of prioritization as it does to

Green’s more general claim of deliberate indifference. Thus, Green gains nothing by a

more liberalconstruction, and the district court

did not err in that regard. The question

remains, however, whether the court erred in

finding the claim frivolous.

B.

1.

Green sued several of the prison officialsin

their supervisory capacities. Supervisory officials are not liable for the actions of their

subordinates on a theory of vicarious liability

or respondeat superior. Thompkins v. Belt,

828 F.2d 298, 303 (5th Cir. 1987).
4

“Supervisory officials may be held liable only

if: (i) they affirmatively participate in acts that

cause constitutional deprivations; or (ii) they

implement unconstitutional policies that

causally result in plaintiff’sinjury.” Mouille v.

City of Live Oak, 977 F.2d 924, 929 (5th Cir.

1993).

With respect to Warden Lampert, Assistant

Warden Duke, Nurse McKinney, and Mrs.

Brown, Green has alleged only that they denied his grievances. A denial of a prison grievance, even when officialsfail to follow internal

regulations is not tantamount to a constitutionalviolation. SeeHernandez v. Estelle,

788 F.2d 1154, 1158 (5th Cir. 1986).

Moreover, Green has not alleged that these

defendants creat ed the policy in question.

Thus, the district court did not abuse its

discretion in finding that Green’s description

of these defendants’ involvement in his dental

care did not establish liability under § 1983.

The court correctly dismissed these claims as

frivolous. 

2.

Green contends that forcing inmates to

finish their meals in five to eight minutes violates the Eighth Amendment. He intentionally

did not name any of the dining hallsupervisors

in his complaint that the district court

dismissed asfrivolous;therefore, he challenges

only the constitutionality of the policy.2 

The Eighth Amendment requires that inmates be provided well-balanced meals with

sufficient nutritional value to preserve health.

Berry, 192 F.3d at 507. If, however, a

deprivation of food does not deny a prisoner

the “minimal measure of life’s necessities,” it

does not violate the Constitution. Id. (quoting

Talib v. Gilley, 138 F.3d 211, 213 n.3 (5th

Cir. 1998). Even missing fifty meals in five

months does not violate the Constitution; indeed, two meals per day may be adequate. Id.

Green has no constitutionally-protected right

to consume his meals at a rate that pleases

him.

To the extent that eating quickly

exacerbated his medical condition, Green’s

complaint is not with the dining hall policy, but

with his medical treatment. Prison officials offered Green a blended food pass, which he

refused. An inmate’s disagreement with medical treatment does not give rise to a constitutional claim. Martinez v. Turner, 977

F.2d 421, 423 (8thCir. 1992). Thus, the court

did not err in dismissing this portion of

Green’s claim as frivolous, because Green

seeks to protect a legal interest that does not

exist.

3.

Collier, by contrast, had personal

involvement in examining Green and denying

him treatment. Green argues that Collier was

deliberatelyindifferent to hismedicalneeds, by

refusing to replace or reline his denturessooner and by refusing to treat his sore gums. To

succeed on this claim, Green must show that

Collier was deliberately indifferent to his serious medical needs, knowingly inflicting wanton and unnecessary pain. See Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.), cert.

denied, 528 U.S. 906 (1999). Inadequate

treatment may rise to the level of a

constitutional violation, but negligent care or

malpractice does not. Id. at 534. 

Although this standard raises a high bar to

2

 The court dismissed the claim as frivolous in

part because Green did not name the dining hall

supervisors in his complaint. We may affirm the

district court, however, on any basis supported by

the record. Berry, 192 F.3d at 507.
5

prisoners’ claims, the facts Green alleges may

support a claim under the Eighth Amendment.

For the dismissal to be proper, Green’s claim

must lack an arguable basis in law or fact; it

must rest on the violation of a legal interest

that does not exist or allege baseless facts.

Berry, 192 F.3d at 507. Green has alleged that

Collier examined him but refused to provide

himwith new or relined dentures or to treat his

gums. Although “a prison official is not liable

for the denial of medical treatment ‘unless the

official knows of and disregards an excessive

risk to inmate health or safety,’” Harris, 198

F.3d at 159 (citing Stewart, 174 F.3d at 534),

Green’s claim is not “indisputably meritless.”

Harper, 174 F.3d at 718.

Deprivation of dental treatment may

constitute deliberate indifference. In Harris,

198 F.3d at 159-60, we recognized that a

prisoner presented a cognizable Eighth

Amendment claim where prison officials

denied himaccessto dental care for his broken

jaw and forced him to eat solid food. One

circuit countenanced an Eighth Amendment

claim where an inmate’s lost dentures caused

him bleeding gums, interfered with his ability

to eat, and permanently damaged histeeth, but

prison officials failed to relieve his pain or

prescribe a soft food diet. See Hunt v. Dental

Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). 

In Chance v. Armstrong, 143 F.3d 698 (2d

Cir. 1998), the court held that a prison

dentist’srefusal to fill a cavity rose to the level

of deliberate indifference, because the tooth

deteriorated to the point that it had to be

pulled. The Chance court found significant

that the prisoner’s inability to chew properly

caused extreme pain and impaired his daily

activities. Id. at 702-03. Similarly, the court in

Harrison v. Barkley, 219 F.3d 132, 137-39

(2d Cir. 2000), found that a prison dentist was

deliberately indifferent to an inmate’s medical

needs when he left a cavity untreated for one

year after discovering the condition.3

These cases demonstrate that in closely analogousfactsituations, courts have recognized

claims ofdeliberate indifference. Certainly, the

district court might have distinguished Green’s

case from the aforementioned examples on the

basis that he refused the palliative measure

offered him; indeed, Green never asserted that

the blended food would not alleviate his pain.

The court also might find that Green’s

conditionlacked sufficient degenerative impact

to require Collier to treat him more quickly.

Additionally, the court might construe

Collier’s actions asmerelynegligent treatment.

As the district court noted, “[u]nsuccessful

medical treatment does not give rise to a

§ 1983 cause of action,” nor does “mere

negligence, neglect, or medical malpractice.”

Varnando v. Lynaugh, 920 F.2d 320, 321 (5th

Cir. 1991).4 

This analysis, though, indicates that Green

has alleged facts sufficient to raise an Eighth

Amendment issue about which reasonable legal minds could differ. Therefore, this claim is

not, on its face, indisputably meritless. The

court may have erred in dismissing this claim

as frivolous.

3

See also Williams v. Scully, 552 F. Supp.

431, 432 (S.D.N.Y. 1982) (finding that making an

inmate wait 51⁄2 months for a cavity filling

presented an issue of material fact as to deliberate

indifference).

4

“Medical malpractice does not become a constitutional violation merely because the victim is a

prisoner.” Estelle v. Gamble, 429 U.S. 97, 106

(1976). 
6

III.

The district court correctly noted that

“[m]edicalrecords ofsick calls, examinations,

diagnoses, and medications may rebut an

inmate’s allegations of deliberate indifference.”

Banuelos v. McFarland, 41 F.3d 232, 235

(5th Cir. 1995). If the court relied on properly

authenticated medical records from the John

Middleton facility, then it may have properly

dismissed the claim. Green argues, however,

that the court improperly relied on medical

recordsfrom the Marshall Formby facility, the

prison to which he was transferred following

his stay at John Middleton. Green maintains

that after the initial examination, he received

no medical treatment at John Middleton; these

records document treatment after the time of

the alleged Eighth Amendment violation. 

A court may base a dismissal under 28

U.S.C. § 1915(e) “on medical or other prison

records if they are adequately identified and

authenticated.” Banuelos v. McFarland, 41

F.3d 232, 234 (5th Cir. 1995). Although we

grant wide discretion to the district court to

dismiss prisoners’ IFP complaints asfrivolous,

the court must use authentic and reliable evidence. If such documents are not adequately

authenticated, judgments that rely on them

must be vacated. Wilson v. Barrientos, 926

F.2d 480, 483 (5th Cir. 1991).

The court found that “[b]etween the time

plaintiff entered [the Texas prison system] and

the time he received his new dentures, he was

seen by the medical department eleven times

and wasscheduled for thirteen meetings.” The

court does not indicate from which facility

these records came. These documents are not

part of the record on appeal; without them, we

cannot determine the credibility either of

Green or of the records. “[I]f a prisoner’s

version of the facts underpinning a civil rights

action . . . is inherently plausible and internally

consistent, a court may not for purposes of a

[§ 1915(e)] dismissalsimply choose to believe

conflicting material facts alleged by the

defendants. It is only for the trier of fact to

decide which party is more believable.”

Wesson v. Oglesby, 910 F.2d 278, 282 (5th

Cir. 1990).

Moreover, if these records were presented

during the magistrate judge’s factfinding process in accordance with Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985), overruled on

other grounds by Denton v. Hernandez, 504

U.S. 25 (1992), the district court arguably

used the documents impermissibly to refute

Green’s testimony. See Norton v. Dimazana,

122 F.3d 286, 292 (5th Cir. 1997) (noting that

a defendant may not use medical records to

defeat a prisoner’stestimony at a Spears hearing). In a Spears hearing, “the court should

allow proper cross-examination.” Id. Green

asserts that the court did not allow him to

review or refute this evidence against him. 

IV.

Without more before us, we cannot

determine conclusively whether the district

court improperly used and relied on these

records. Further, without resolving the

question of fact as to the institution whence

the records come, we cannot decide whether

the court properly dismissed Green’s claim as

frivolous. 

Accordingly, we AFFIRM the dismissal of

Green’s claims against Warden Lampert, Assistant Warden Duke, Nurse McKinney, and

Mrs. Brown. We AFFIRM the dismissal of

the claim that the prison dining policy violated

Green’s Eighth Amendment rights. We

VACATE and REMAND the dismissal of the

claims against Dr. Collier for factual findings
7

consistent with this opinion. We express no

view as to the appropriate ultimate resolution

of these claims.